A Federal Appeals Court Says That a Massachusetts School Can Ban a T-shirt With Two Genders on It

A federal appeals court said that a Massachusetts school district was right to ban a student’s “There Are Only Two Genders” T-shirt because protecting LGBTQ+ students from abuse is more important than free speech.

Following the lead of other courts that have dealt with similar cases, we stress that in many areas of public life, people must face the risk of hearing messages that are degrading of race, sex, religion, or sexual orientation, even when those messages are highly insulting of those traits. Chief Judge David J. Barron wrote the opinion for a panel of three judges on the U.S. Court of Appeals for the First Circuit. The decision, which came out on Sunday, backs up a decision from a federal district court.

“But, like these other courts, we don’t understand Tinker [a 1969 Supreme Court decision on student speech] to have said that our public schools should be similarly unregulated places where people can talk and debate freely about even the most contentious and controversial issues,” he said.

In this case, the student was named L.M., but news stories called him Liam Morrison. He was in the seventh grade at Middleborough’s John T. Nichols Middle School when he wore the shirt to school on March 21, 2023. He met with the school’s interim director and other administrators. They told him that some students had complained about the shirt and that he had to take it off before going back to class. The officials said the shirt broke the dress code’s rule against hate speech. Morrison said no, so he skipped school for the day. He did not get in trouble.

On May 5, 2023, he wore the shirt to school again, but this time the words “Only Two” were taped over with the word “Censored.” People in charge told him he also couldn’t wear that shirt, so he took it off and went back to class. After a few days, two more students were told they were breaking the dress code because they were wearing shirts with the same message. Both decided to take off their shirt and go back to class, but one didn’t want to and went home. Neither of them got in trouble either.

Right away after that, Morrison and his parents went to U.S. District Court in Massachusetts and said that his First Amendment rights to free speech had been violated. The district court said the school district had the right to apply the dress code to keep students who might be at risk safe. The court said that the shirt’s message “may communicate that only two gender identities—male and female—are valid, and any others are invalid or nonexistent.” The court also said that “students who identify differently… have a right to attend school without being confronted by messages attacking their identities.” Morrison and his parents took their case to the First Circuit, which made the decision on Sunday.

The appellate decision said that Nichols Middle School administrators knew that some of its students were transgender or didn’t conform to gender norms. These students often felt uncomfortable or were bullied at school. Judge Barron said that they were likely to respond badly to Morrison’s shirt, and the administrators were right to think that it would make it hard to learn.

“This is not about whether the T-shirts should have been banned,” he wrote. “The question is whether teachers or federal judges should decide if they should be banned.” We can’t say that the Constitution gives us the judgmental (and possibly important) power to decide what would make “an environment conducive to learning at NMS” instead of the teachers who are closest to the situation. In addition, he said that the message on the shirt is not the most degrading, but it is also more than “tepidly negative.”

The Alliance Defending Freedom, which has a lot of clients who are against LGBTQ+ rights and abortion, is Morrison’s lawyer. David Cortman, senior counsel for the ADF, told Bloomberg Law that the group is “looking at all legal options,” which could include appealing this ruling. It could go all the way to the U.S. Supreme Court or the whole First Circuit.

“Just because they walk into a school building doesn’t mean they lose their right to free speech,” Cortman said. “The government can’t shut down anyone who speaks out because it doesn’t like what they say.”